UK FOIA requests - Spy Blog

The Information Tribunal will have a third attempt at hearing the appeal of the the Office of Government Commerce against the Information Commissioner's Decision to order the full publication of the early Gateway Reviews of the Home Office's wretched Identity Cards Programme next Thursday 27th November 2008:

Information Tribunal Current Cases at: 06/11/2008 (.pdf)

Office of Government Commerce

30-Aug-06 FOI

FOI

FS50070196
FS50132936

Office of Government
Commerce

Part Heard

Further hearing on 27 November at Field House at 10:00am

Field House
15 Bream's Buildings
London
EC4A 1DZ

Field House location map

Our original Freedom of Information Act request for the pre-stage Zero and Stage Zero Gateway Reviews of the Home Office's Identity Cards Programme (documents which were already a year or 18 months old) made on 1st January 2005, which should have been fulfilled, no more than 20 working days later, will have taken at least 1427 days or 3 years, 10 months, 27 days

How many hundreds of thousands of pounds in legal costs will this deliberate prevarication by the bureaucracy have cost the public purse ?

It looks as if the combined efforts of the WhatDoTheyKnow.com FOIA request submission and tracking website, together with the interest in the topic shown by the BBC Radio 4 iPM programme - Share What They Know?, has eventually resulted in the disclosure of the "missing" Statutory Code Of Practice, which is supposed to regulate the infinite powers under the Serious Crime Act 2007, for public authorities to share your personal sensitive data, with private sector "specified anti-fraud organisations".

The next Home Office data security and privacy disaster ? Sharing all our financial details with private sector "specified anti-fraud organisations"

See our resulting FOIA request via the WhatDoTheyKnow.com website:

Home Office - latest copy or draft of the Serious Crime Act 2007 Code of practice for disclosure of information to prevent fraud

The actual Code of Practice is available from the WhatDoTheyKnow.com website entitled:

Data Sharing for the Prevention of Fraud (.pdf 277Kb)

Code of practice for public authorities disclosing
information to a specified anti-fraud organisation under
sections 68 to 72 of the Serious Crime Act 2007

Incredibly, in spite of all the recent lost sensitive private data scandals, this Code of Practice manages not to make a single mention of strong encryption

There is no clue as to why, when the Code of Practice was presented to Parliament on their return from the Summer recess, on Monday 6th October, the accompanying Statutory Instrument came into force on 1st October.

Why could the Home Office not have made the legal powers only come into force at the same time , or after the publication of the Code of Practice ?

Were they planning to dither and prevaricate and not bother publishing this weak Code of Practice for several months longer ?

HM Revenue and Customs have at last, after 6 months, sent their Internal Review of their decision not to reveal any details about the special categories of people who allegedly get extra security for their tax records - a completely unacceptable 2 tier system - why isn't everyone's tax record given this "special category" protection from internal HMRC staff who may be tempted or corrupted to snoop ?.

The Request for an Internal Review - March 2008:

HMRC tax record special categories - request for FOIA Internal Review

The original FOIA request was sent at the end of January 2008:

See HMRC response to FOIA request for general details of the Special Categories of tax returns of Celebrities and VIPs etc.

Unsurprisingly the HMRC Internal Review does not rule in favour of disclosure.

HMRC did answer ("outside the terms of the Act") one of the additional points put to them when requesting the Review, namely how vulnerable people e.g. victims of domestic violence are meant to know that their tax records could be "protected" in a "special category", but they fail to say what the eligibility criteria are, or how one can check if this is actually being done properly.

The Information Commissioner's Office guidelines state that a Freedom of Information Act Internal Reviews, even in the most complicated cases, should not take more than 6 weeks, so the 6 month delay by HMRC is either due to incompetence or political manipulation.

This delaying tactic prevents an FOIA requestor from complaining to the Information Commissioner's Office, until the Internal Review by the Government Department has been completed.

Since the HMRC Internal Review process is now exhausted, we are forced to add to the Queue of FOIA Complaints at the Information Commissioner's Office.

The Ministry of Justice has replied to our reduced Freedom Of Information Act request (the third we have now submitted, counting the initial one to the Home office).

This has implications for defining the very few places in the UK where you might be accused of breaking the law, when taking photographs of buildings or people in public, or at least outside etc.

The vast majority of places in the United Kingdom are not Prohibited Places, even though some of the ones which are not, perhaps should be.

Places which have been declared prohibited under section 3(c) of the Official Secrets Act 1911 are contained in the Official Secrets (Prohibited Places) Orders 1994 (SI 1994/968) and 1955 (SI 1955/1497). The 1994 Order is accessible from the Office of Public Sector Information website (www.opsi.gov.uk) and/or the Statute Law Database (www.statutelaw.gov.uk). The 1955 Order is not available online other than through subscription to a legal database but a hard copy may be obtained from the Stationery Office through their online bookshop (www.tsoshop.co.uk) or by calling 0870 600 5522.

No places have been declared prohibited under section 3(d) of the 1911 Act.

The Ministry of Justice does not hold any maps, diagrams or other information showing the physical extent of the prohibition in the places concerned.

The Official Secrets Act 1911 has been modified by subsequent Acts over the years, especially the Official Secrets Act 1989.

Its use of the word "Enemy" has had little direct relevance since World War 2, as the UK Government has not bothered with any old fashioned formal Declarations of War since then - all the shooting and "cold" wars we have been involved with as a nation have been "police actions" or "self defence" or "in pursuit of a United Nations Security Council Resolution" etc.

Things are further complicated by Anti-Terrorism legislation which certainly defines evil people, and organisations, but which has its own criminal penalties for collecting or passing information, including documents in electronic form, to terrorists, even if they are not officially Enemies. regardless of whether they are actually actually Proscribed Terrorist Groups or not.

Astonishingly, the Taliban never has been, and is still currently not a Proscribed Terrorist Group, even though British military forces are fighting them , supposedly to prevent them from terrorising local Afghans, and providing shelter to Al Quaeda etc. Surely they are our |"Enemy" ?

See the legal briefing which argues this point regarding the "Enemy" under the Official Secrets Act 1911, in the current Corporal Daniel James espionage case (a military interpreter accused of passing information to some vague Iranian organisation or Government, in spite of the support of his commanding officer etc.)

See Michael John Smith's blog Operation Billiards - Mitrokhin or Oshchenko ?, who is trying to overturn his own convicting under this Act for passing secrets to the Soviet KGB for details. - Wrong Interpretation of Section 1 of Official Secrets Act

SI 1994/968 The Official Secrets (Prohibited Places) Order 1994 replaces the 1993 Order, and rather redundantly, adds Sellafield, Capenhurst, Harwell and Windscale nuclear fuel factories, nuclear fuel re-processing or research sites to the list .

As noted in our original Freedom of Information Act request, all Licensed Nuclear Sites are declared by the Nuclear Installations Act 1965 Schedule 1 Security Provisions Applicable by Order under S.2 to be deemed to be Prohibited Places under section 3 of the Official Secrets Act 1911.

The current public register of Licensed Nuclear Sites can be found on the Health and Safety Executive's website:

Firms subject to the provisions of Nuclear Installations Act 1965 (as amended) (.pdf)

This listing includes the same nuclear fuel and research sites previously declared in the 1994 Statutory Instrument, along with other nuclear research reactors and nuclear power stations.

We have had to resort to reading a paper copy of the Official Secrets (Prohibited Places) Orders 1955 (SI 1955/1497) . This Order came into force on 1st Octber 1955, signed by "One of Her Majesty's Principle Secretaries of State", James Stuart, who was the then Secretary of State for Scotland, in the Conservative government under Prime Minister Anthony Eden.

The only Prohibited Place it mentions is the Dounreay fast breeder nuclear reactor research site in the County of Caithness, run by the Atomic Energy Authority.

The most interesting part of the Ministry of Justice's reply is:

No places have been declared prohibited under section 3(d) of the 1911 Act.

This echoes the Parliamentary Written Answer, given by the then Labour Home Secretary Merlyn Rees, back on 18th July 1977, under Prime Minister Jim Callaghan.

N.B. this volume of Hansard is not properly online yet, but it has been scanned and digitised as part of the Historical Digitisation of Hansard project:

HC Deb 18 July 1977 vol 935 cc369-70W

Official Secrets Act

Mr. Robin F. Cook

asked the Secretary of State for the Home Department (1) if he

369W

will make a statement regarding the operation of Section 3(a) and Section 3(b) of the Official Secrets Act 1911 as regards prohibited places;

[scanning across pages and columns seems to be in error]

(2) if he will provide a list of all places which are, or have been, declared by a Secretary of State to be prohibited places under Section 3(c) of the Official Secrets Act 1911;

(3) if he will provide a list of all places which are, or have been, declared by a Secretary of State to be prohibited places under Section 3(d) of the Official Secrets Act 1911.

Mr. Merlyn Rees

The lists of places which have been declared prohibited places under Section 3(c) of the Official Secrets Act 1911 are contained in the Official Secrets (Prohibited Places) Orders 1955 (SI 1955/1497) and 1975 (SI 1975/182). No places have been declared prohibited under Section 3(d). Sections 3(a) and 3(b) of the Act define certain

371W

types of installation as prohibited places The decision to prosecute in a particular case is a matter for the police in the first instance and is subject to the consent of the Attorney-General.

HC Deb 18 July 1977 vol 935 cc370-1W

The then backbench Labour MP Mr. Robin F. Cook later became the Foreign Minister under Prime Minister Tony Blair.

Therefore, unless the 1955 Statutory Instrument mentions them explicitly, none of the Government Buildings which have been involved in Public Finance Initiative or Public Private Finance sell of and lease back schemes, are own by the Crown any more, and they have not been specifically declared by a Secretary of State as being Prohibited Places under the Official Secrets Act 1911.

This probably applies to the Ministry of Defence buildings (Old and New) in Whitehall, HM Treasury, all of the HM Revenue and Customs estate, the Home Office in Marsham Street, all the Immigration and Passport Agency's new Passport Applicant interrogation offices etc.

It also applies to the privatised Prisons and Detention Centres.

Similarly, the privatised Defence Research laboratories are no longer owned by the Crown either e.g. Qinetiq, Porton Down and so they no longer come under the automatic "owned by the Crown, used for military purposes" criteria of section 3(c),

which is for the time being declared by order of a Secretary of State to be a prohibited place for the purposes of this section, on the ground that information with respect thereto, or the destruction or obstruction thereof, or interference therewith, would be useful to an enemy

They might still be Prohibited Places under section 3(b), but the Ministry of Justice says that , aprt from the nuclear sites, there are none.

None of these are Prohibited Places regarding espionage photography.

Apart from the Licensed Nuclear Sites, and Military bases owned by the Crown, the other main categories of site which can be made into Prohibited Places by order are airports owned by the Civil Aviation Authority e.g. Heathrow Such Civil Aviation Authority owned aerodromes are deemed to be owned by the Her Majesty, through the Civil Aviation Act 1982 section 18 Official secrets

That mans that civilian airfields e.g. Heathrow airport, could be declared to be Prohibited Places by Order but, at the moment under the Official Secrets Act 1911 section 3(c), but , currently, according to the Ministry of Justice, none of them are currently so declared.

Buildings or sites used by Communications Providers under the Communications Act 2003 Schedule 17 para.2

Official Secrets Act 1911

2 For the purposes of the Official Secrets Act 1911 (c. 28), any electronic communications station or office belonging to, or occupied by, the provider of a public electronic communications service shall be a prohibited place.

This includes British Telecom landline telephone exchanges and the mobile phone network companies e.g. Vodafone, and internet service providers, and cable tv / internet data companies providing telephony or email services e.g. Virgin Media.

This does not includes Royal Mail Post Offices and private letter or parcel delivery companies like TNT or DHL, since these are public postal communications providers , who can be told to physically intercept postal mail deliveries under the Regulation of Investigatory Powers Act 2000, but they are not telecommunications

When the General Post Office ran the telephone system i.e. before it was privatised into British Telecom, , then its exchanges and telegraph offices etc. were Prohibited Places under the Post Office Act 1969 schedule 4 para 21, but
that was repealed by the Postal Services Act 2000 Schedule 9 Repeals and Revocations. The Post Office itself was finally killed off as a legal entity by the Post Office Dissolution Order 2007.

None of these Prohibited Places actually ban photography by the public for innocent, non-espionage purposes, but the burden of proof seems to shift to the photographer having to prove his innocence.

However, the power of arrest by the Police under the Official Secrets Act 1911 was repealed i by the Serious Organised Cr me and Police Act 2005, and prosecution could only ever be by consent of the Attorney General (something which is likely to change generally to consent of the Director of Public Prosecutions, if the Constitutional Reform Bill is passed).

There is no excuse whosoever for Police Constables, Police Community Support Officers, military guards or private security guards etc. to claim that any site or building, except for obvious military bases (including our dwindling fleet of 40 naval vessels) and Licensed Nuclear Sites are Prohibited Places under the Official Secrets Act 1911.

Having been chided by the estimable Julian Todd, for not making use of the ver improving WhatDoTheyKnow.com FOIA request submission and tracking website, we have decided to try our luck in sending in an FOIA request through that website, rather than directly via email.

See the Spy Blog article The next Home Office data security and privacy disaster ? Sharing all our financial details with private sector "specified anti-fraud organisations"

Will we get an idea of what the alleged data handling security and privacy safeguards are supposed to be, before the new powers to circumvent the Common Law Duty of Confidentiality which used to protect our financial and medical details, which come into force on 1st October ?

The text of our WhatDoTheyKnow.com - FOIA request:

When the Information Commissioner's Office get around to considering the complaint regarding last November's Freedom of Information Act request for the locations and durations of the statutory Authorisations made under section 44 of the Terrorism Act 2000, i.e. the supposedly temporary areas where normal Police stop and search powers are exceptionally changed to become stop and search without reasonable suspicion powers ?

The ICO wrote in May that they had at least a 12 week backlog.

They have now written again, in August, having allocated the complaint to the

Team 2 (Education, Police and Justice) queue

However, there is no estimate of when this complaint will be looked at, let alone resolved.

Click on the HO Terrorism Act 2000 s44 Authorisations category archive, for the full saga of delays so far.

Text of the (paper snail mail) letter:

We now await a reply to our Modified FOIA request to the Ministry of Justice, regarding locations of Official Secrets Act 1911 Prohibited Places declared by Order of a Secretary of State.

All we are trying to do is to find out where exactly the few locations in the UK are, where it is illegal to take photographs in public !

Text of the email:

A substantive reply from the Ministry of Justice, regarding our attempt to get a simple listing of where people are not allowed to take photographs of the exterior of buildings or the immediate vicinities of buildings or sites, which have been declared to be Prohibited Places under the pre- First World War Official Secrets Act 1911.

I can advise you that the Ministry of Justice does hold some of the information you request.

However, it will not be possible to provide you with this information within the appropriate limit set out in section 12(1) of the Freedom of Information Act. Section 12 of the Act makes provision for public authorities to refuse requests for information where the cost of dealing with them would exceed the appropriate limit, which is set at £600 for central Government. The limit represents the estimated cost of one person spending 3½ working days locating, retrieving, and extracting the information. Your request is therefore refused under section 12 (1) of the FOI Act.

If you were to refine your request, for example by specifying a narrower time frame, or listing which orders you are especially interested in, we would be happy to reconsider your request.

[...]

We shall try again, just concentrating on the name and location of any 'Prohibited Places' declared under the Official Secrets Act 1911; specifically by Order of a Secretary of State, which are currently in force.

Full text of the reply:

The Information Commissioner has made a Decision, in favour of the Foreign and Commonwealth Office, refusing disclosure of the just names and job titles of the Russian and UK diplomats expelled in July 2007, over the failure to extradite or prosecute Andrei Lugovoi, for alleged involvement in the radioactive Polonium 210 murder of British citizen Alexander Litvineko in London in November 2006.

See the Information Commissioners Office Decision Notice FS50179353 (.pdf)

These names and job titles are obviously known to all foreign governments with embassies in London or Moscow, and to the international press corps and other corporate or national intelligence agencies.

The Exemptions claimed were not, as you might expect, Section 24 National Security or Section 27 International Relations but Section 40 Personal Data

We think that it is wrong for senior diplomats, who, after all, publicly represent the people of the United Kingdom, to be hidden under such a veil of secrecy, when neither National Security, nor their own personal safety are at any risk whatsoever from an FOIA disclosure.

Just because it is a "longstanding diplomatic custom", not to name the individuals expelled in such Cold War games, that is an obsolete concept in this internet age.

The Foreign & Commonwealth Office publishes an official list of accredited diplomats at foreign embassies and consulates in London, for protocol purposes.

Every other embassy and consulate in the world, also knows all the other accredited members of the Diplomatic Corp in the capital city to which they are posted, again, primarily for protocol and precedence reasons, to determine who gets invited to, and where they are seated at, official ceremonies and functions.

It seems that the FCO has cast aspersions on our FOIA request, with the insulting claim that:

12 The public authority recognised the fact that in certain circumstances there is a legitimate interest in knowing the identities of officials, for example, where senior civil servants are accountable for high profile projects. However in this case it said that any interest in the identities of the diplomats expelled as a result of the Litvinenko diplomatic dispute could be described as "curiosity" rather than " a legitimate interest that would further a common good". The public authority referred to a decision of the Information Tribunal when it had commented on the difference between what is in the public interest and what is of interest to the public.

The FCO itself already publishes the London Diplomatic List, which names the possible Russian diplomats who were expelled.

See also the Spy Blog article London Diplomatic List - can you spot the expelled Russian diplomats ?

30. The complainant has suggested that the information he has requested is of an anodyne nature, i.e. the names and job titles of diplomats employed by the public authority in Moscow and their counterparts and that this is information that one might expect to be made readily available. However it is important to stress that what has actually been requested are the names and job titles of diplomats expelled as a result of a very high profile diplomatic dispute. The murder of Alexander Litvinenko and the subsequent diplomatic expulsions generated a significant amount of media interest and the Commissioner is of the opinion that were the identities of the diplomats to be revealed there would be a very real risk that they would be subject to undue press interest or pressure to the extent that disclosure could be considered unfair.

What has the amount of, or lack of "press interest" got to do with a Freedom of Information Act disclosure ??

31. The public authority has also suggested that they may be stigmatised at having been expelled. The public authority has not shown any evidence to justify its concern and the Commissioner makes no comment on this point one way or another. However he does feel that given that the diplomats involved were expelled as a result of a situation over which it appears they had no control, they should be protected as far as possible from any adverse consequences. It would not be unreasonable to suppose that their careers, given the sensitivity of their roles, could be disadvantaged in some way were their identities to be revealed.

If any of the expelled diplomats were actually intelligence officers working under diplomatic cover, then they should never be sent on such a mission again - their cover is blown to all the world's intelligence agencies etc.

The people who will be stigmatised, are all the people who have been working at the London and Moscow embassies, who have, for normal career progression or personal family reasons, left and gone back home or been posted elsewhere, at around the same time, but who have not been expelled.

Transparency and openness through the requested FOIA disclosure would prevent these people from being stigmatised as possible spies.

32. The complainant has argued that the identities of the expelled diplomats will be known to other governments with embassies in Moscow and London and to the foreign press corps. Therefore he has suggested that the public authority's decision to refuse his request is unjustified. The Commissioner sees no contradiction between the public authority's decision to withhold the names of the diplomats and the fact that this information may be known to diplomatic staff that would have an operational need to know this information. Equally, the fact that a relatively small group of journalists may have speculated on the identities of the diplomats concerned is not in itself a reason to order wider disclosure of the information.

How does this make any sense at all ? There is no "wider disclosure" which could possibly affect the expelled diplomats or spies - every intelligence agency, terrorist group, organised criminal gang etc. already knows their identities and probably lots of other details.

33. The complainant has highlighted the decision of the Information tribunal in Ministry of Defence v Information Commissioner and Mr R Evans [EA/2006/0027] (.pdf) in support of his position. In this case the Tribunal decided that the Ministry of Defence should release the details of staff at the Defence Export Services Organisation, including staff operating in sensitive areas overseas. The Commissioner believes that the circumstances in that case were quite different to the circumstances in this case. In that case the Tribunal's decision was influenced by the fact that staff details were already widely available. The Commissioner rejects the complainant's argument that the decision in the Ministry of Defence case somehow acts as a precedent which he is obliged to follow.

That Information Tribunal Decision even allows the disclosure of the names, job titles and office contact details etc. of dozens of Ministry of Defence staff working in Saudi Arabia, where the MoD claimed that they were at particular risk of terrorist attack.

The same cannot be said of the former diplomats who have been sent home from London and from Moscow, who do not face any such risk at all..

This decision by the Information Commissioner is wrong,

It just seems to support rule by "faceless bureaucrats" including Russian Federation ones, who should not be protected by the UK Freedom of Information Act 2000 exemptions at all.

We have until the 3rd of September to lodge any Appeal with the Information Tribunal.

We cannot afford to hire a barrister to represent us before the Information Tribunal, and so this capitulation to faceless bureaucracy by the information Commissioner will probably go unchallenged.

See the full text of the Decision below:

Our attempts to clarify exactly the where you can and where you cannot take photographs in seemingly public areas, some of which used to be or perhaps still are designated as "Prohibited Places" under the pre-World War 1, pre aerial or satellite photography (or even pre- hand held camera ) era Official Secrets Act 1911 continue.

The Mnistry of Justice have replied, just within the 20 working days statutory limit, to our "belt and braces" copy of our original request to the Home Office, sent on 3rd July, on the assumption that the promise by the Home Office to forward the request to the Ministry of Justice, was not something to be relied on.

However, the Ministry of Justice is claiming another 20working days, i.e. up to 1st September 2008, in order to perform a public interest balancing exercise, regarding Section 24 Natioal Security exemption for some of the information requested.

Surely if the idea is to prevent spies from taking photographs of "Prohibited Places" or the immediate vicinity of such places, then there need to be warning public signs and notices to that effect ? How can this be of any use if the approximate locations which are being "protected" in this way are kept secret ?

1 Penalties for spying

(1)If any person for any purpose prejudicial to the safety or interests of the State--

(a)approaches, [F1inspects, passes over] or is in the neighbourhood of, or enters any prohibited place within the meaning of this Act; or

(b)makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy; or

(c)obtains, [F1collects, records, or publishes,] or communicates to any other person [F1any secret official code word, or pass word, or] any sketch, plan, model, article, or note, or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy;

he shall be guilty of felony . . . F2

Do "Prohibited Places" still include, for example coal mines or railway lines or military dockyards , which were of strategic military importance before and during the First and Second World Wars, but which have now been shut down ?

3 Definition of prohibited place

For the purposes of this Act, the expression "prohibited place" means--

[F1(a)any work of defence, arsenal, naval or air force establishment or station, factory, dockyard, mine, minefield, camp, ship, or aircraft belonging to or occupied by or on behalf of His Majesty, or any telegraph, telephone, wireless or signal station, or office so belonging or occupied, and any place belonging to or occupied by or on behalf of His Majesty and used for the purpose of building, repairing, making, or storing any munitions of war, or any sketches, plans, models or documents relating thereto, or for the purpose of getting any metals, oil, or minerals of use in time of war];

(b)any place not belonging to His Majesty where any [F2munitions of war], or any [F2sketches, models, plans] or documents relating thereto, are being made, repaired, [F3gotten,] or stored under contract with, or with any person on behalf of, His Majesty, or otherwise on behalf of His Majesty; and

(c)any place belonging to [F3or used for the purposes of] His Majesty which is for the time being declared [F2by order of a Secretary of State] to be a prohibited place for the purposes of this section on the ground that information with respect thereto, or damage thereto, would by useful to an enemy; and

(d)any railway, road, way, or channel, or other means of communication by land or water (including any works or structures being part thereof or connected therewith), or any place used for gas, water, or electricity works or other works for purposes of a public character, or any place where any [F2munitions of war], or any [F2sketches, models, plans] or documents relating thereto, are being made, repaired, or stored otherwise than on behalf of His Majesty, which is for the time being declared [F2by order of a Secretary of State] to be a prohibited place for the purposes of this section, on the ground that information with respect thereto, or the destruction or obstruction thereof, or interference therewith, would be useful to an enemy.

What about former Ministry of Defence or other Government buildings e.g. The Treausy, HM Revenue and Customs, the Home Office etc., which were "Prohibited Places" by virtue of being owned by the Crown, but which have now been sold off and leased back, under Public Private Finance Initiative schemes ?